Citation NR: 9739087
Decision Date: 11/24/97 Archive Date: 12/03/97
DOCKET NO. 95-09 397 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an increased rating for Post Traumatic Stress
Disorder (PTSD), currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Colleen Canovas, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1970 to May 1973.
This matter is currently before the Board of Veterans’
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California.
In August 1991, the veteran filed a claim for service
connection for PTSD. By rating decision dated in June 1992,
the RO granted service connection for PTSD and assigned a 10
percent rating. By rating decisions dated in March 1993 and
January 1995, the RO determined that the veteran was not
entitled to an increased rating and confirmed the previous
evaluation. The veteran filed a timely appeal to the Board.
In September 1995, the RO granted an increased evaluation of
30 percent for PTSD. In a statement received in May 1996,
the veteran in essence indicated that he wished to continue
his appeal and suggested that a 50 percent disability rating
was appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to an increased
rating for PTSD, due to the severity of his symptoms. In his
May 1996 letter, the veteran asserted that he should be
entitled to a 50 percent rating, due to short-term memory
loss, problems with performing his job, flashbacks and
problems with authority.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased evaluation for the veteran’s
service-connected PTSD. The benefit sought on appeal is
denied.
FINDING OF FACT
The veteran’s PTSD is manifested by symptoms of combat-
related nightmares, once or twice a week; intrusive thoughts
about combat on an irregular frequency; poor sleeping; no
close friends; irritability and frustration tolerance; verbal
abuse to his children and co-workers; and hypervigilance.
The veteran is employed and supervises labor pools of
prisoners. The veteran expressed problems at work with
getting along with his supervisors and getting passed over
for promotions. The most recent Global Assessment
Functioning (GAF) score was 51, which was indicative of
moderate symptomatology.
CONCLUSION OF LAW
The criteria for a rating higher than 30 percent for PTSD
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 &
Supp. 1997); 38 C.F.R. §§ 4.7, 4.126, 4.130, 4.132,
Diagnostic Code 9411 (1996); 38 C.F.R. § 4.130, Diagnostic
Code 9411 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that he is entitled to an increased
rating for his service-connected PTSD, due to the increase in
severity of his symptoms. He claims that he has short-term
memory loss and that he had problems performing his job.
Law and Regulations
The Board believes that the veteran has presented a well-
grounded claim for an increased rating for his service-
connected disabilities, within the meaning of
38 U.S.C.A. § 5107(a). When a claimant is awarded service
connection for a disability and subsequently appeals the RO's
initial assignment of a rating for that disability, the claim
continues to be well grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995).
The Board is also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran is
required to comply with the duty to assist mandated by 38
U.S.C.A. § 5107. Disability evaluations are determined by
the application of the VA Schedule for Rating Disabilities,
which is based on average impairment of earning capacity.
Different diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
In evaluating the service-connected disability, the Board
considers the current examination reports in light of the
whole recorded history to ensure that the current rating
accurately reflects the elements of the disability present.
38 C.F.R. § 4.1, 4.2 (1996). 38 C.F.R. § 4.10 provides that
the basis of disability evaluations is the ability of the
body as a whole, or of the psyche, or of a system or organ of
the body to function under the ordinary conditions of daily
life including employment.
Where an increase in a service-connected disability is at
issue, the present level of disability is of primary concern.
Although review of the recorded history of a service-
connected disability is important in making a more accurate
evaluation, see 38 C.F.R. § 4.2, the regulations do not give
past medical reports precedence over current findings. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 38 C.F.R.
§ 4.2 also provides that each disability must be considered
from the point of view of the veteran working or seeking
work.
Prior to November 1996, the Schedule for Rating Disabilities
provided that the criteria for rating PTSD as 30 percent and
50 percent disabling was as follows:
General Rating Formula for Psychoneurotic Disorders:
Ability to establish or maintain effective or
favorable 50%
relationships with people is considerably impaired.
By
reason of psychoneurotic symptoms the reliability,
flexibility and efficiency levels are so reduced as
to
result in considerable industrial impairment.
Definite impairment in the ability to establish or
30%
maintain effective and wholesome relationships with
people. The psychoneurotic symptoms result in such
reduction in initiative, flexibility, efficiency and
reliability levels as to produce definite industrial
impairment.
38 C.F.R. § 4.132, Diagnostic Code 9400 (1995).
With respect to the word "definite", as the Court pointed out
in Hood v. Brown, 4 Vet. App. 301, 303 (1993), that term is
qualitative rather than quantitative. However, it is
possible to quantify the degree of impairment which would
lead to an award at the 30 percent level. Cox v. Brown, 6
Vet. App. 459, 461 (1994). In a precedent opinion, dated
November 9, 1993, the General Counsel of the Department of
Veterans Affairs concluded that "definite" is to be construed
as "distinct, unambiguous, and moderately large in degree."
It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The
Department of Veterans Affairs, including the Board, is bound
by this interpretation of the term "definite." 38 U.S.C.A.
§ 7104(c) (West 1991); 38 C.F.R. § 3.101 (1995).
On and after November 7, 1996, the Schedule for Rating
Disabilities was amended. The pertinent provision now reads
as follows:
General Rating Formula for Psychoneurotic Disorders:
Occupational and social impairment with reduced
reliability 50%
and productivity due to such symptoms as: flattened
affect;
circumstantial, circumlocutory, or stereotyped speech;
panic
attacks more than once a week; difficulty in
understanding
complex commands; impairment of short- and long-term
memory (e.g. retention of only highly learned material,
forgetting to complete tasks); impaired judgment;
impaired
abstract thinking; disturbances of motivation and mood;
difficulty in establishing effective work and social
relationships.
Occupational and social impairment with occasional
30%
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although
generally
functioning satisfactorily, with routine behavior,
self-care,
and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions,
recent events).
38 C.F.R. § 4.130, Diagnostic Code 9411 (amended by 61 Fed.
Reg. 52,695 (1996)).
The Court has furnished guidance concerning the effect of an
intervening change in VA regulations while an appeal is
pending. In Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991), the Court stated: “where the law or regulation
changes after a claim has been filed or reopened but before
the administrative or judicial appeal process has been
concluded, the version most favorable to appellant should and
we hold will apply . . . .” The Board has therefore examined
the two versions of the VA Schedule for Rating Disabilities
in light of Karnas.
Background
A review of service personnel records reveals that the
veteran served in Vietnam as a boiler technician.
In August 1991, the veteran filed a claim for service
connection for PTSD. By rating decision of June 1992, the RO
granted service connection for PTSD and assigned a 10 percent
rating.
The RO received a treatment report dated in March 1993 from
the veteran’s social worker. It was reported that the
veteran was experiencing numerous emotional difficulties
related to his employment and his family life. He remained
depressed, agitated, angry, and isolated. He complained of
intense frustration and sleep disorders, including frequent
wake-ups and bad dreams. It was noted that the veteran had
been employed for many years as an equipment operator. He
continually experienced conflicts with authority figures in
the workplace and had been passed over for promotions. The
veteran stated that his workplace hierarchy was just like
being in the military and the social worker noted that it
appeared as though the veteran was still fighting the war.
It was determined that the veteran had definite impairment
both socially and occupationally. The diagnosis was PTSD
chronic type. The GAF score was 45 and the veteran was noted
to have social, emotional and occupational isolation.
On VA psychiatric examination in August 1994, the veteran
reported nervous problems on and off since discharge from
service. He had decreased sleep and irregular eating habits.
He said that he had flashbacks off and on which involved
memories about service situations. He had episodes of
depression related to weight changes and sometimes would be
inactive and withdrawn for awhile. He sometimes had anxiety
about closed in situations. He stated that he got irritated
with people. He had some trouble at work dealing with
authority and he sometimes resisted his supervisors. He felt
like an outsider in his work situation and said that he had
been passed over for promotion to foreman a number of times.
It was noted that the veteran began working for the county
public works department in 1976 and gradually worked his way
up through equipment operation. He was a senior equipment
operator and he felt that he managed the work well. He
expressed frustration, however, because of his difficulty in
advancing to higher administrative positions which had been
his goal. The diagnosis was mild anxiety disorder, not
otherwise specified. The examiner felt that the problems
that the veteran described affecting his relation to
authority and interpersonal functioning seemed to be related
to personality factors. There was no clear evidence that his
period of service would have caused these difficulties. It
was also discussed that over a period of time, the veteran
had been steadily employed and seemed to have advanced
adequately with respect to his skills. Further advancement
seemed held back by his interpersonal functioning but it did
not seem likely that it would be related to his service
experience. The veteran’s reported flashbacks seemed
generally mild and unobtrusive and he did not seem to meet
the criteria for PTSD.
On VA psychiatric examination in August 1995, the veteran
stated that he had problems with relationships and work. He
said that he felt chronically insecure, uncertain and
estranged. He felt that he pushed people away from him and
he did not want people to see his emotions or be close to his
feelings. He had a relationship with his three children and
a woman, but had no other social outlets. He did not want to
go out or be with people. He felt discouraged. He was
working with the county and felt that he had invested a great
deal of time and effort in the position, because he started
at the bottom and worked his way up. He reported that he had
applied numerous times for a promotion, but had been
repeatedly rejected in favor of other people. He thought he
might have been rejected for promotions because he had a
problem with authority. He felt that the chronic rejections
sapped his ambition. He was involved in counseling with a
veteran’s support group once per week and was not taking any
medication. He had trouble falling asleep and could only
sleep perhaps five hours a night. He knew he had bad dreams,
but could not recall them. He had intrusive thoughts about
war experiences. He felt nervous, jumpy, irritable and
restless. It was noted that the veteran felt that he was
getting along satisfactorily with his girlfriend. Upon
mental status examination, it was reported that the veteran’s
mood and affect was earnest, anxious, preoccupied, puzzled,
and that he was somewhat distractible. He displayed no
psychotic thinking. He was alert and oriented and did mental
arithmetic. His recall memory was poor for objects recalled
after five minutes or less. The diagnosis was PTSD. The GAF
score was 60. It was noted that the veteran continued to
show prominent emotional estrangement, isolation, and
anhedonia problems which the examiner attributed to PTSD and
a secondary dysthymic disorder.
The RO received a treatment report dated in August 1995 from
the veteran’s social worker. It was reported that the
veteran had serious problems in interpersonal relationships,
as well as very significant problems in the workplace. It
was noted that in spite of steady employment as a county
employee, he remained at a low level in the workplace
hierarchy and that he had been passed over for promotion
numerous times. It was indicated that the veteran had
problems with authority and that he had sleep disorders,
social and emotional isolation, anxiety attacks, extreme loss
of weight over the previous six months, depression, angry
outbursts, difficulty in concentrating, and fatigue. The
examiner determined that the veteran had a “very definite”
impairment, both socially and occupationally. The diagnosis
was PTSD chronic type. The GAF score was 45.
By rating decision dated in September 1995, the RO determined
that the veteran was entitled to an increased rating of 30
percent.
On VA PTSD examination in April 1996, the veteran reported
that he was having problems with his wife. He had few
friends and had problems dealing with his co-workers. He
continued to go to therapy sessions twice a week. His sleep
was poor, with only about five or six hours of sleep per
night. He had nightmares approximately once a week. He
reported intrusive thoughts about combat experiences daily.
He said that one of his triggering stimuli was the ocean,
being near water or the coastline. He found that his
concentration ability was occasionally faulty and he
sometimes did not hear or understand instructions being told
to him. He was taking no medications. It was reported that
the veteran was continuing to work, but he had ongoing
tension and difficulties with his supervisors. Upon
examination, the veteran’s mood was tense, anxious and
worried. He displayed no psychotic thinking. He was alert
and oriented and did mental arithmetic. The diagnosis was
PTSD. The GAF score was 55. It was noted that the veteran
showed ongoing PTSD problems affecting his work and home
life.
In his May 1996 letter, the veteran reported that he had
short-term memory loss and difficulty with concentration. He
stated that he felt that he was entitled to a 50 percent
rating for PTSD, because he had a lot of problems at work.
He indicated that he was supposed to be a heavy equipment
operator, but that he was not permitted to operate the
equipment. He was passed over for a promotion that he felt
he was qualified for. He stated that he had problems with
authority and could not get along with his bosses or co-
workers. He claimed his co-workers knew that he was a
veteran and hassled him. He said that he had flashbacks and
felt that he had to avoid the things that triggered them. He
wanted to transfer to a different job as a correctional
officer, but he could not be around guns and the sound of
locks.
The RO received treatment records of therapy sessions with a
social worker dated from September 1995 to May 1996,
documenting treatment for various complaints, such as PTSD
symptoms, and family and work-related issues. In October
1995, it was reported that the veteran had problems with
authority and that he was refused a promotion. In February
1996, it was noted that the veteran was passed over again for
promotion.
The RO received treatment records of therapy sessions with
another social worker dated from August 1995 to May 1996,
documenting treatment for various complaints, such as PTSD
symptoms, anger, frustration, depression, and family and
work-related issues. In January 1996, the veteran expressed
frustration and irritation with work. In May 1996, it was
reported that the veteran still had apparent anger and
frustration over occurring life events and that he had
increased anxiety over life problems.
In a May 1997 letter, the RO requested that the veteran
provide updated medical records, since June 1996, from his
therapists. The veteran was requested to send the
information within 60 days. The veteran did not respond to
the request.
At the June 1997 VA examination, the RO specifically
requested that the veteran be evaluated under Diagnostic and
Statistical Manual of Mental Disorders, Third Edition (DSM-
III) and Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV). The veteran reported
that he was attending therapy sessions and had begun seeing a
psychologist. He slept poorly, possibly five hours of sleep
a night. He had combat-related nightmares, once or twice a
week, and intrusive thoughts about combat on an irregular
frequency. He had no close friends, just good acquaintances.
He stated that he gave up hunting, fishing, and ball games
and mostly just sat at home. He had problems communicating
with his wife. The only sense of pleasure the veteran had
with his life was a sense of relationship with his wife and
children. He felt that his irritability and frustration
tolerance had become worse. He stated that he was more
verbally abusive to his children and co-workers and saw
himself as a perfectionist. He was hypervigilant. He was
continuing to work, but saw himself in a dead-end position.
He was not able to perform his job as an equipment operator,
but was supervising labor pools of prisoners. Upon
examination, his speech was fluent and logically constructed
and his mood was rather anxious but also morose, a bit
pessimistic and fatalistic. There was no psychotic thinking
and he was alert and oriented. He did mental arithmetic,
proverb abstraction and judgment testing well. His insight
was fair. The veteran’s recall memory was three out of four
items were spontaneously recalled and the fourth item was
recalled with a clue. The diagnosis was PTSD. Global
Assessment Functioning (GAF) score was 51. It was noted that
the evaluation and conclusions were the same under DSM-III
and DSM-IV.
In June 1997, the RO evaluated the veteran’s PTSD under
criteria of Diagnostic Code 9411, as amended on November 7,
1996, and determined that the veteran did not meet the
criteria of a 50 percent rating under the revised Diagnostic
Code 9411.
Analysis
The Board, after having carefully reviewed the pre-1996 and
the 1996 rating criteria, has determined that the present
rating criteria are “most favorable” to the veteran. The
Board bases its conclusion of the clarity and specificity of
the 1996 criteria, compared to the “lack of clarity” in the
criteria which were in effect before November 1996. Cf.
Massey v. Brown, 7 Vet. App. 204, 207 (1994). In particular,
the Board has noted the Court’s explicit criticism of the
pre-1996 schedular criteria: “. . . the schedule of ratings
for psychoneurotic disorders . . . in 38 C.F.R. § 4.132 does
not present a clear basis for describing the degree of
impairment [citing Hood].” Id.
Under the 1996 revision of the VA Schedule for Rating
Disabilities, a 30 percent disability rating is warranted in
cases involving occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
A 50 percent rating is warranted in cases involving
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g. retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing effective work and social relationships.
The veteran has presented evidence of private treatment
records of therapy sessions with a social worker. In March
1993, it was reported that the veteran was experiencing
numerous emotional difficulties related to his employment and
his family life. It was noted that the veteran had been
employed for many years as an equipment operator. He
continually experienced conflicts with authority figures in
the workplace and had been passed over for promotions. The
veteran stated that his workplace hierarchy was just like
being in the military. It was determined that the veteran
had definite impairment both socially and occupationally.
The diagnosis was PTSD chronic type. The GAF score was 45
and the veteran was noted to have social, emotional and
occupational isolation. In an August 1995 treatment report,
it was reported that the veteran had serious problems in
interpersonal relationships, as well as very significant
problems in the workplace. It was noted that in spite of
steady employment as a county employee, he remained at a low
level in the workplace hierarchy and that he had been passed
over for promotion numerous times. It was indicated that the
veteran had problems with authority and that he had sleep
disorders, social and emotional isolation, anxiety attacks,
extreme loss of weight over the previous six months,
depression, angry outbursts, difficulty in concentrating, and
fatigue. The examiner determined that the veteran had a very
definite impairment both socially and occupationally. The
diagnosis was PTSD chronic type. The GAF score was 45.
The August 1994 VA examination was conducted by a Board
certified psychiatrist. The August 1995, April 1996, and
June 1997 psychiatric and PTSD examinations were conducted by
a VA psychiatric specialist, who is a physician. In August
1994, it was the opinion of the physician that the problems
that the veteran described affecting his relation to
authority and interpersonal functioning seemed to be related
to personality factors. It was also discussed that over a
period of time, the veteran had been steadily employed and
seemed to have advanced adequately with respect to his
skills. Further advancement seemed held back by his
interpersonal functioning but it did not seem likely that it
would be related to his service experience. The specific
findings of the other VA examination are discussed above. In
August 1995, the GAF score was 60, in April 1996, the GAF
score was 55, and in June 1997, the GAF score was 51.
The Board finds it to be significant that the June 1997 VA
examination, which is the most recent of record, found the
veteran’s speech to be fluent and logically constructed. In
order to be entitled to a 50 percent evaluation under the new
criteria, the veteran would have evidence of circumstantial,
circumlocutory, or stereotyped speech.
The record shows that the veteran does have some difficulties
with his memory. On VA examination in August 1995, it was
noted that the veteran’s memory was poor for items recalled
in five minutes or less. At the most recent VA examination
in June 1997, the veteran’s recall memory was three out of
four items were spontaneously recalled and the fourth item
was recalled with a clue. There was no evidence that the
veteran was experiencing long-term memory loss or that he was
failing to complete job-related tasks.
Also at the June 1997 VA examination, the examiner noted that
the veteran’s mood was rather anxious but also a bit morose,
a bit pessimistic and fatalistic. In the August 1995
treatment record prepared by the veteran’s social worker, the
veteran’s symptoms included anxiety attacks, angry outbursts,
and difficulty in concentrating. The probative medical
evidence does not show a disturbed mood for a 50 percent
evaluation, but rather shows that the veteran’s mood is
anxious as found in the criteria for a 30 percent evaluation.
The record also does not support a 50 percent evaluation with
respect to the difficulty in establishing and maintaining
effective work and social relationships. The veteran was
working at the time of the June 1997 examination at a job
that he had held for approximately twenty years. The veteran
did express some difficulty with understanding commands from
his supervisors at work and he said that he had difficulty
with authority, but as of the June 1997 VA examination, he
was still employed. The medical and treatment records in the
claim file support that the veteran had difficulty with his
supervisors and co-workers. The veteran has provided a
history of working his way up in his department to heavy
equipment operator, but reported that he was repeatedly
passed over for a promotion to foreman or supervisor. In the
August 1995 treatment record prepared by the veteran’s social
worker, it was reported that in spite of steady employment,
the veteran remained at a low level in the workplace
hierarchy and had been passed over for promotion numerous
times. However, at the time of the June 1997 VA examination,
it was reported that the veteran was a supervisor of prisoner
labor pools. The veteran stated that he had few friends.
Although he described a deterioration and strain in the
relationships with his family members, he stated that he took
pleasure with the relationship he had with his wife and
children.
The record shows that the veteran’s occupational and social
impairment is not marked by reduced reliability and
productivity under the criteria for a 50 percent rating, but
rather shows an occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks under the 30 percent criteria. The veteran has
consistently maintained employment, although he indicates
that he has difficulty in performing the job. He is
generally functioning satisfactorily, which is a criteria for
the 30 percent evaluation. He does indicate that he has been
passed over for a promotion as foreman, but is currently
working in the capacity of a supervisor of labor pools of
prisoners.
Employment is a factor that must be considered with regard to
the evaluation of mental disorders. 38 C.F.R. § 4.130, prior
to November 1996, provided that the severity of the
disability is based upon actual symptomatology as it affects
social and industrial adaptability and that two of the most
important determinants of disability are time lost from
gainful work and decrease in work efficiency. Also. the
rating board must not underevaluate the emotionally sick
veteran with a good work record. The amended regulations in
effect on and after November 6, 1996 do not include this
provision. The present regulation, 38 C.F.R. § 4.126 (b),
provides that when evaluating the level of disability from a
mental disorder, the rating agency will consider the extent
of social impairment, but shall not assign an evaluation
solely on the basis of social impairment.
"The BVA has the duty to assess the credibility and weight to
be given the evidence." Wood v. Derwinski, 1 Vet. App. 190,
193 (1991), (reconsideration denied per curiam, 1 Vet. App.
406 (1991)). As the Veterans Court stated in Owens v. Brown,
7 Vet. App. 429, 433 (1995), "[i]t is not error for the
[Board] to favor the opinion of one competent medical expert
over that of another when the Board gives an adequate
statement of reasons [or] bases." The Veterans Court, in
Owens, further noted that "[i]t is the responsibility of the
[Board], not [the] Court, to assess the credibility and
weight to be given to evidence." Id.; see also Smith v.
Derwinski, 1 Vet. App. 235, 237-38 (1991) (stating that
"[d]etermination of credibility is a function for the
[Board]," not the Court). The Veterans Court has declined to
adopt a rule that accords greater weight to the opinions of
treating physicians. Chisem v. Brown, 4 Vet. App. 169
(1993). The Veterans Court has determined that Board is not
required to accept a VA examining physician's opinion, a
private physician's opinion, a social worker's opinion, or
the opinions or contentions offered by any other source for
that matter. See Wood v. Derwinski, 1 Vet. App. at 192-93;
see also Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
The Board, after a review of all of the evidence of record,
chooses to place greater weight on the findings of the VA
examinations conducted by physicians over the reports of the
private psychiatrist. The April 1996 and June 1997
examinations were conducted after the March 1993 and August
1995 treatment reports prepared by the social worker. All of
the VA examinations were conducted with the benefit of a
complete review of the veteran’s claim folder. The evidence
in the claim folder is essentially consistent throughout with
regard to the complaints and symptomatology of the veteran.
The veteran had difficulty with his supervisors, in that he
had a problem with authority, and he had a strained
relationship with his family. The only inconsistency in the
evidence was the GAF scores assigned by the social worker and
the GAF scores assigned the VA physicians. The social worker
assigned a GAF score of 45, indicative of severe symptoms, in
March 1993 and August 1995. At the time of the April 1996
examination, the GAF score was 55 and at the time of the June
1997 examination, the GAF score was 51, indicative of
moderate symptomatology.
For these reasons and bases, the Board concludes that the
veteran’s PTSD is appropriately evaluated as 30 percent
disabling under the rating criteria effective November 8,
1996.
The Board also finds that the veteran’s PTSD is marked by not
more than definite industrial and social impairment under the
old rating criteria. The most recent VA examination in June
1997 shows that the veteran’s GAF score was 51. In addition,
in August 1995, the veteran’s social worker determined that
the veteran was experiencing “very definite” impairment both
socially and occupationally, a finding which is consistent
with a 30 percent evaluation and which appears inconsistent
with the assignment of a GAF score of 45. The definite
impairment of the veteran’s ability to establish and maintain
relationships is shown in the record by the fact that he has
few friends, has strained relationships with family members,
and has conflicts with co-workers.
Upon comparison of the GAF scores assigned at the VA
examinations, the Board acknowledges that the veteran appears
to be getting worse. As noted above, the determination of
the social worker that the veteran has a GAF score of 45
appears inconsistent with his overall findings. 38 C.F.R.
§ 4.7 provides that when there is a question as to which of
the two evaluations shall be applied, the higher rating will
be applied only when the disability picture more nearly
approximates the criteria required for that rating. The
Board has considered all of the evidence and believes that
the veteran does not more nearly approximate the higher
rating of 50 percent.
In addition, the veteran’s PTSD symptomatology does not rise
to the level of considerably impaired under the criteria for
a 50 percent evaluation because the record contains evidence
that the veteran does maintain effective or favorable
relationships. The veteran testified that he does have a few
friends and that he takes pleasure in the relationship that
he has with his wife and children. Thus, the record does not
show greater than definite impairment to establish and
maintain relationships.
The veteran’s symptoms also do not result in reduction of
initiative, flexibility, efficiency, and reliability as to
produce greater than definite industrial impairment. The
record contains evidence that the veteran has continued to
work at the same job for more than twenty years and even
though he feels that he has not received promotions or raises
on a timely basis, the veteran was assigned to be a
supervisor of a labor pool of prisoners. He has not
presented any evidence that he has experienced an impairment
of efficiency and reliability so as to produce a greater than
definite industrial impairment. The Board therefore finds
that the veteran’s PTSD has not resulted in greater than
definite industrial and social impairment, under the old
criteria.
Based upon these findings and following a full review of the
record, the Board finds that the evidence is not so evenly
balanced as to require application of the benefit of the
doubt in favor of the veteran. Gilbert, 1 Vet. App. at 56
(1990). Accordingly, the Board finds that the criteria have
not been met for an evaluation greater than 30 percent under
either the old or new criteria in the schedule of ratings.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4, §§ 4.126, 4.130,
Diagnostic Code 9411 (amended by 61 Fed. Reg. 52,695 (1996).
In reaching this decision, the Board has considered the
complete history of the disability in question as well as the
current clinical manifestations and the impact the disability
may have on the earning capacity of the veteran. 38 C.F.R.
§§ 4.1, 4.2; Schafrath, 1 Vet. App. 589.
ORDER
Entitlement to an increased rating for PTSD is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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